Polish Constitutional Crisis: A Discussion with President Rzeplinski of the Polish Constitutional Tribunal

April 12, 2017 @ 10:00 am - 11:30 am

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Former President Andrzej Rzeplinski of the Polish Constitutional Tribunal will be coming to Harvard Law School on Wednesday 12 April from 10-11:30 am in WCC B010. He will join us for a conversation about the Rule of Law in Poland. His appearance at the Law School is organized by the Working Group on Autocratic Legalism (GOAL) led by visiting HLS professor Kim Lane Scheppele.

The Polish government is now the subject of a “rule of law” procedure at the European Commission, accused of having violated the rule of law with its attacks on the Constitutional Tribunal. President Rzeplinski fought off these attacks until the end of his regular term in January 2017, at which point the Court was captured by the government and now no longer challenges the government’s unconstitutional actions. The rule of law procedure at the European level is just now reaching a decision point that might result in sanctions against the Polish government. More about the rule of law procedure can be found here: http://europa.eu/rapid/press-release_IP-16-4476_en.htm .

Since the populist Justice and Life Party (PiS in Polish) came to power in 2015, the Polish government has taken a battering ram to constitutional institutions. The Constitutional Tribunal was its first and primary target. Without a constitutional majority to change the constitution to accomplish its goal of capturing all state institutions and refusing to recognize the loyal opposition, the government tried instead to neutralize the one institution that could tell the government its actions were unconstitutional: The Constitutional Tribunal.

The government first tried to deny seats on the Court to judges lawfully elected by the prior parliament; then it appointed judges more to its liking who were elected in an ad hoc procedure. When the Court ruled that the Court would only seat the judges elected in the constitutional manner, the government refused to publish the Court’s ruling and instead passed a law restricting the Court’s competencies. This new law formally changed the procedure for electing judges and crippled the Court with rules that prevented it from issuing decisions in a timely way. The Court struck this law as unconstitutional and again the government refused to publish the ruling. The stand-off was only broken when President Rzeplinksi’s regular term ended and the government immediately replaced him with one of their own loyalists who seated the judges favored by this government and began to issue rulings rubberstamping the government’s laws.

President Rzeplinski led the Court through this difficult time. His work was praised by the Venice Commission and by many rule of law advocates in the European Union and beyond. The Polish government has now turned its attention to the ordinary judiciary, which it is similarly attempting to intimidate. The Polish government has also captured much of the media and the civil service, and it is now contemplating changes to the election law to help it win the next election. In this PiS government, both the President of the Republic and the head of the PiS party have PhDs in law, and they use their legal skills to neutralize the constitution.

Many aspiring autocrats now successfully use the law to undermine the rule of law. Our conversation on Wednesday will focus on the uses of “autocratic legalism” in the consolidation of power by new populists. Poland follows in the footsteps of Hungary, where the government of Prime Minister Viktor Orbán has captured all state institutions by rewriting the constitution and passing a web of laws that consolidates power in a few hands and blocks the opposition and dissenting civil society from having any meaningful role in politics.

President Rzeplinski will be interviewed by Kim Lane Scheppele, who has challenged the Orbán government’s similar destruction of the Constitutional Court in Hungary, an institution she worked in for four years in the 1990s.